unusable common property due to safety issues

Under section 62 of the Act, the Owners Corp has an absolute duty to maintain and repair common property (see below).  There are exclusions but they only apply if the Owners Corp has passed a special resolution to NOT repair the common property AND a decision to do so doesn’t affect the safety or appearance of the property.

So here’s what you do.  Send a letter to your secretary saying you want to have a meeting to decide on a plan to repair the common property.

You may, depending on the politics of the building, forewarn them that if they refuse to have the meeting or refuse at the meeting to do anything about the repairs, you will pursue them at NCAT, seeking orders under section 62.

So basically, this becomes a “hard way or easy way” question.  The hard way is that they fight you at NCAT and lose, then they have to raise the money to fix the common property, or they do the right thing, get repair estimates prepared, raise the money (either by special levies or, preferably to most people, strata loans) and get the work done.

If owners say they can’t afford it, that’s too bad.  They have been saving money by not putting enough in the sinking fund – now their parsimony has come back to bite them on the collective bum.

Here’s what section 62 of the Act says – and clearly, this is not optional:

62   What are the duties of an owners corporation to maintain and repair property?

(1)  An owners corporation must properly maintain and keep in a state of good and serviceable repair the common property and any personal property vested in the owners corporation.

(2)  An owners corporation must renew or replace any fixtures or fittings comprised in the common property and any personal property vested in the owners corporation.

(3)  This clause does not apply to a particular item of property if the owners corporation determines by special resolution that:

(a)  it is inappropriate to maintain, renew, replace or repair the property, and

(b)  its decision will not affect the safety of any building, structure or common property in the strata scheme or detract from the appearance of any property in the strata scheme.

Note. The decision of an owners corporation under subsection (3) may be reviewed by an Adjudicator (see section 138).

@scotlandx said:
In relation to the external access staircase – given the advice provided by the engineer, the OC needs to take urgent/immediate action to prevent access to that staircase.  If it doesn’t, then the OC is likely to be liable for anything that occurs such as injuries to a person using the staircase, and an insurance company would not pay out on it.  That is a very serious matter as the owners will be personally liable.

I totally agree with the getting the repairs done.  The OC seriously needs to attend to it.

I disagree that “the OC is likely to be liable for anything that occurs such as injuries to a person using the staircase, and an insurance company would not pay out on it.” And that “owners will be personally liable”.

The OC’s compulsory liability insurance is taken out specifically to cover the OC’s legal liability including when the OC is negligent (eg due to lack of maintenance).

What can happen is that the insurance company will refuse to cover the OC again unless the OC first makes the necessary repairs. 

And that’s serious too.  The OC must have compulsory liability insurance.

Once again we are back at this argument of the difference between legal liability and what is covered by insurance.

I have put in a call to our insurance sponsors CHU to get a definitive answer on this and other insurance issues but in the meantime I am going to agree with Scottie.  

And I will draw your attention to THIS STORY where an insurer refused to cover a unit block roof that was blown off in a storm (a so-called “act of God”) because the building was defective and the roof was considered not fit for purpose.

Owners corps and committees are generally covered for accidental negligence, but not willful negligence.  Knowing there is a problem and choosing not to anything about it can invalidate your insurance coverage and, I believe, make the members of the committee and owners corp who chose not to do anything about it PERSONALLY liable for damages if there is an accident.

First, I’d like to re-state that the OC needs to fix the problem. 

Second, about the insurance:  Realise that OC Liability Insurance is cover for something that the OC has done wrong.

Legally wrong.

So the question is about how wrong the OC has to be before the insurance that covers that OC wrong, cuts out. 

It’s never going to be a good answer.    It’s always going to be a shade of OC bad.

The OC should not have done it in the first place – no argument from me.  But why have insurance for legal liability unless it covers the OC when the OC is …  well … legally liable?  Is there a point to it otherwise?

pmo says it’s “black and white” but the law referenced is all about disclosure at the time of taking out a policy or re-newing it. 

What happens mid-policy?  Because that’s the issue being discussed here – or at least I thought it was …   If the OC is told that it’s neglecting maintenance on something, does that mean the OC’s liability insurance relating to that something then becomes invalid?

I can’t see how individual owners will be held “personally” liable for an OC responsibility.  But I would be interested to know.